Kwiatkowski v. Bertoldo

13 A.D.3d 1208, 786 N.Y.S.2d 786, 2004 N.Y. App. Div. LEXIS 16294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered June 16, 2003. The order, insofar as appealed from, denied the motion of defendants S&D Tire Sales, Inc. and R. Steven Pierce for summary judgment dismissing the complaint against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum:

Plaintiffs commenced this action to recover damages for injuries they sustained when the vehicle driven by Mary E. Kwiatkowski (plaintiff) in which Daniel Kwiatkowski was a passenger collided with another vehicle at the intersection of Bullís Road and Two Rod Road in the Town of Marilla. At the northwest corner of that intersection, defendant S&D Tire Sales, Inc. (S&D) operates a business on property owned by defendant R. Steven Pierce. Plaintiffs allege that a tire rack and cars parked on that property obstructed plaintiffs view of oncoming traffic and thereby contributed to the accident.

Supreme Court properly denied the motion of S&D and Pierce (defendants) seeking summary judgment dismissing the complaint against them. The proof submitted by defendants, including photographs taken near the accident scene, failed to establish as a matter of law that plaintiff’s view was not obstructed (cf. Pahler v Daggett, 170 AD2d 750, 751-752 [1991]; see generally Somersall v New York Tel. Co., 52 NY2d 157, 167 [1981]). The material appended to plaintiffs’ brief is not part of the record on appeal, was not before the court when it ruled on the motion, and therefore is not considered on this appeal (see Fisk v Slye, 234 AD2d 983 [1996]). Present—Pigott, Jr., P.J., Green, Pine, Gorski and Lawton, JJ.